Tunnage (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) visa (Subclass 309) made by a visa applicant who claimed to be the spouse of an Australian citizen. The core dispute revolved around whether the couple was in a genuine and continuing spousal relationship as defined by the Migration Act 1994 (Cth).

The Tribunal was required to determine if the parties met the criteria for a spousal relationship under section 5F of the Act. This involved assessing whether they were married to each other under a valid marriage, shared a mutual commitment to a life together to the exclusion of others, maintained a genuine and continuing relationship, and lived together or did not live separately and apart on a permanent basis. The Tribunal also had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994.

The Tribunal found that the parties were validly married, accepting the provided Marriage Certificate as evidence. However, it concluded that further consideration was needed regarding the other requirements of a spousal relationship, particularly in light of evidence such as regular international visits, substantial correspondence, money transfers, awareness of living arrangements, traditional Vietnamese marriage celebrations, wide-ranging support statements, and a separation due to pandemic travel restrictions. The Tribunal determined that the matter should be remitted for reconsideration by the Minister to assess these remaining criteria.